A07-19

State of Minnesota,

Respondent,

vs.

Brandon Dale Kuznia,

Appellant.

Filed September 4, 2007

Affirmed

Worke, Judge

Otter Tail County District Court

File No. TX-06-877

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

David J. Hauser, Otter Tail County Attorney, Heather L. Brandborg, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)

Peter J. Timmons, 700 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431; and

Max Allen Keller, Interchange Tower, 600 Highway 169 South, Suite 1597, Minneapolis, MN 55105 (for appellant)

Considered and decided by Wright, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WORKE, Judge

On appeal from a conviction for snowmobiling while intoxicated, appellant argues that the district court erred in finding that (1) a 911 tipster was sufficiently identified and provided enough information to justify the seizure of appellant, and (2) the officer had a reasonable, articulable suspicion to seize him. We affirm.

D E C I S I O N

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). In the absence of a factual dispute, whether an investigatory stop is unlawful is a question of law subject to de novo review. Id.; State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).

Here, in the early morning hours, an officer responded to a 911 call received from an individual who indicated that he witnessed numerous individuals “falling down” as they left a bar. The caller provided his name, but indicated that he wanted to remain anonymous. The caller stated that the individuals were driving red or black Polaris snowmobiles. The officer headed in the direction that the caller stated the snowmobilers were traveling. Approximately one-quarter mile later, the officer encountered a group of snowmobilers parked either in the ditch or on the side of the road. The snowmobiles were similar to those reported by the caller. One of the snowmobilers sped away as the squad car approached. The officer activated his emergency lights, but the fleeing snowmobiler did not stop. The officer parked his squad car on the side of the road and left his emergency lights activated because it was dark and the roads were slippery. When the officer approached the snowmobilers to investigate, he noted that the individuals were not clear in responding to his inquiry regarding where they had come from, exhibited slurred speech, and were swaying from side-to-side. The individuals also almost fell over when they removed their helmets.

The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. In Terry v. Ohio, the Supreme Court held that investigatory stops are reasonable and not in violation of the prohibition against unreasonable searches and seizures when the officer has a reasonable, articulable suspicion of criminal activity. 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). An officer may make an investigative seizure of an individual if the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id.

Appellant Brandon Dale Kuznia argues that he was seized when the officer approached him and his group while the officer’s emergency lights were activated. A reasonable person would not feel free to leave under the circumstances; thus, it is reasonable that appellant was seized at that point. However, a reasonable, articulable suspicion of criminal activity existed and the investigatory stop of appellant was not unreasonable.

Appellant also challenges the reliability of the individual who placed the 911 call. In order to justify a traffic stop, an informant’s tip must possess sufficient “indicia of reliability.” Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). “Minnesota cases dealing with traffic stops based on informant tips have focused mainly on two factors: (1) identifying information given by the informant, and (2) the facts that support the informant’s assertion that a driver is under the influence.” Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000). The totality of the circumstances should be considered when making determinations on these factors. Id. There is also a presumption that citizen informants are reliable. Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). Here, law enforcement knew the full name and location of the caller. The informant had personal knowledge—he witnessed the individuals “falling down” on their way out of the bar and sitting on their snowmobiles. The fact that several of the individuals were still outside “firing up” their snowmobiles and leaving while the caller was still on the phone reasonably correlates to the location of the snowmobilers stopped in the ditch and was likely reliable. Based on the totality of the circumstances, the tip possessed a sufficient indicia of reliability. Because a reasonable, articulable suspicion of criminal activity existed and the tip was sufficiently reliable, the district court did not err in denying appellant’s motion to suppress.

Affirmed.